Terrell v. Town of Tempe

• Decision Date: 25 February 1929
• Docket Number: Civil 2781
• Citation: 35 Ariz. 120,274 P. 786
• Parties: J. W. TERRELL, Appellant, v. THE TOWN OF TEMPE, a Municipal Corporation, T. J. GOODWIN, T. A. BAILEY, HUGH E. LAIRD, J. L. FELTON, H. S. HARLESON, WALTER BUSBY and H. C. BABER, as Individuals and as Members of the Common Council of the Town of Tempe, and C. L. WALMSLEY, as Treasurer and Clerk of the Town of Tempe, and G. A. GOODWIN, FRED J. JOYCE, and DILWORTH BAIRD, in Their Individual Capacity, Appellees
• Court: Arizona Supreme Court

274 P. 786

35 Ariz. 120

J. W. TERRELL, Appellant, v. THE TOWN OF TEMPE, a Municipal Corporation, T. J. GOODWIN, T. A. BAILEY, HUGH E. LAIRD, J. L. FELTON, H. S. HARLESON, WALTER BUSBY and H. C. BABER, as Individuals and as Members of the Common Council of the Town of Tempe, and C. L. WALMSLEY, as Treasurer and Clerk of the Town of Tempe, and G. A. GOODWIN, FRED J. JOYCE, and DILWORTH BAIRD, in Their Individual Capacity, Appellees

Civil No. 2781

Supreme Court of Arizona

February 25, 1929

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded, with instructions.

Messrs Phlegar & Frazier, for Appellant.

Mr Raymond H. Alexander, for Town of Tempe and Appellee Officials.

Messrs Stockton & Perry, for Individual Appellees.

OPINION

LOCKWOOD, C. J.

The town of Tempe was incorporated under Act 72 of the Laws of 1893 of the territory of Arizona, which said Act 72 in substance is now chapter 2, title 7, Revised Statutes of Arizona of 1913, Civil Code. On the 13th of November, 1924 the common council of said town passed the following resolution:

"Motion by Councilman Joyce was seconded by Councilman Busby and carried unanimously, all members present voting thereon, that the members of the common council of the said town of Tempe be paid for thier services the sum of $5.00 each per meeting, same not to exceed 18 meetings per year and to begin with the present meeting."

From and after the passage of this resolution all defendants herein who have served as councilmen for the town received for their services the amount set forth in the resolution. This suit is an action by J. W. Terrell as a taxpayer asking for an accounting between the defendants and the town, and the restitution of any money received by them by virtue of the resolution. The case was submitted to the trial court on an agreed statement of facts, and judgement was rendered in favor of defendants, from which judgment this appeal is prosecuted.

There are some four assignments of error, which together raise but one question of law, and that is whether the resolution above set forth was without authority of law. In our consideration of the case we think it best to lay down certain general principles, and then apply these principles to the facts of the particular case. It is a well-settled rule that municipal corporations have no powers save those which are specifically granted them by the legislature or the Constitution, and such powers as are necessarily to be inferred from the powers granted. This question was decided by this court in the case of Blount v. MacDonald, 18 Ariz. 1, 155 P. 736. Therein we said, quoting from the opinion in Atkin v. Kansas, 191 U.S. 207, 48 L.Ed. 148, 24 S.Ct. 124:

"'Municipal corporations are the creatures -- mere political subdivisions -- of the state, for the purpose of exercising a part of its powers. They may exert only such powers as are expressly granted to them, or such as may be necessarily implied from those granted. What they lawfully do of a public character is done under the sanction of the state. They are, in every essential sense, only auxiliaries of the state for the purposes of local government. They may be created, or, having been created, their powers may be restricted or enlarged, or altogether withdrawn, at the will of the Legislature; the authority of the Legislature, when restricting or withdrawing such powers, being subject only to the fundamental condition that the collective and individual rights of the people of the municipality shall not thereby be destroyed.'" (Italics ours.)

The second general principle applicable is summed up in the saying that "no man may be judge in his own cause." This is so universally accepted that, so far as judicial tribunals are concerned, some of the great English judges have even held that it was doubtful if Parliament itself, with all its almost unlimited powers, could provide that a man might judge his own case. And in principle this rule should apply to any case where a public officer exercises official discretion in a matter which directly affects his own interest, unless there be some express constitutional or valid legislative authority for his act. In the case of Kendall v. Stafford, 178 N.C. 461, 101 S.E. 15, the court said:

"The public policy of the state, found in the statutes and judicial decisions has been pronounced against permitting one to sit in judgment on his own cause, or to act on a matter affecting the public when he has a direct pecuniary interest, and this is a principle of the common law which has existed for hundreds of years. 'It is an ancient maxim, applicable in all cases, civil or criminal, where judicial functions are to be exercised, whether in proceedings of inferior tribunals or in courts of last resort, that no man ought to be a judge in his own cause, a maxim which appeals with such force to one's sense of justice that it is said by Lord Coke to be a natural right so inflexible that an act of Parliament seeking to subvert it would be declared void.' 15 R.C.L. 527.

"'Under the fundamental maxim that no one ought to be judge in his own cause, if we had no statute law upon the subject, no judge, whether probate or other, could take jurisdiction of any cause wherein he was a party or otherwise had a pecuniary interest. This principle is of universal application as a rule of the common law, and subject thereto must be the exercise of all the powers of a judge. Broom's Legal Maxims, 118; 1 Hopkins, Ch. Rep. 1; 2 Strange's Rep. 1, 173. In accordance with this principle, in every grant of jurisdiction, it is always to be understood that the powers conferred are limited by the tacit exception that the judge is not to decide his own cause.' Gregory v. Ellis, 82 [N.C.] N.E. 226.

"'The common law forbade a man being the judge of his own cause, as "if an act of Parliament give a man power to try all causes that arise within his manor of Dale; yet, if cause should arise in which he himself is a party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel." 1 Blackstone, 91. . . . No one ought to be a judge in his own cause; and so inflexible and so manifestly just is this rule, that Lord Coke has laid it down that "even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void, of itself; for jura naturae sunt immatubilia and they are leges legum." This maxim applies in all cases where judicial functions are to be exercised, and excludes all who are interested, however remotely, from taking part in their exercise. It is not left to the discretion of a judge, or to his sense of decency, to decide whether he shall act or not; all his powers are subject to this absolute limitation; and when his own rights are in question, he has no authority to determine the cause.' White v. Connelly, 105 N.C. 70, 11 S.E. 179.

"In Snipes v. Winston, 126 N.C. 374, 78 Am. St. Rep. 666, 35 S.E. 610, which is approved in Davidson v. Guilford County, 152 N.C. 437, 67 S.E. 918, the aldermen of Winston elected one of their members, who participated in the meeting, a street boss at a salary of $50 per month, and the court declared the action of the board of aldermen void because of the pecuniary interest of one of its members, and said: 'This principle cannot be questioned and experience has shown its wisdom. Common reasoning declares this principle to be sound, and the public is entitled to have it strictly enforced against every public official.'" (Italics ours.)

So, also, in Meeks v. Fink, 82 Fla. 244, 89 So. 543, it was said:

"Municipalities are legal entities established for local governmental purposes and have and can exercise only such power as is conferred by express or implied charter provisions. The existence of authority to act cannot be assumed, but should be made to appear. To permit a public officer, without restriction or limitation to fix his own remuneration is to give him an extraordinary power. Under the Constitution (sec. 8, art. 8) the Legislature may confer upon the governing body of a municipality power to fix the salaries of its members, but before charter provisions are given this effect the intent to do so should be expressed in language the meaning of which is clear and unmistakable.

"In Gregory et al. v. Jersey City, 34 N.J.L. 429, in dealing with a similar city ordinance, passed pursuant to a city charter identical in substance and effect with the one under consideration, the court said: 'A legislative grant of power of a character so extraordinary as that which would enable the servant to fix his own remuneration must be carried in express words, or, at least, in language which will not admit of any other reasonable construction. In the absence of such clear terms it cannot be presumed that the Legislature intended to do an act as unwise as it is unusual and anomalous.'

"In McFarland v. Gordon, 70 Vt. 455, 41 A. 507 in considering a similar question, the court said: 'It is fundamental that a man shall not be a judge in his own case. It was early said that no man can serve two masters. It was not the intent of the Legislature in granting the charter before us that the aldermen of Barre should be exceptions to the general rule so anciently declared by such high authority.'

"It is true that the city charter contains provisions from...